Requesting an ECI Investigation or Due Process Hearing

Disability Rights Texas Handout

Early Childhood Intervention Services: Requesting a State Investigation or Due Process Hearing

This handout is available in Braille and/or on audio tape upon request.

Parents with complaints about the early childhood intervention (ECI) services being provided or being denied by a local provider have the right to request either a state investigation or an independent hearing with the Texas Health and Human Services Commission (HHSC). This handout briefly explains ECI services, what a state investigation and a due process hearing are, and how an investigation or a hearing might help your family to obtain ECI services to assist your infant or toddler with a disability. A sample letter to ask for either a state investigation or a due process hearing is included in this handout.

WHAT ARE EARLY CHILDHOOD INTERVENTION SERVICES?

ECI services are services to help promote the development and growth of very young children with developmental disabilities and other mental and physical disabilities. ECI services are delivered by a network of local ECI providers across the state that have been selected by HHSC. Local providers and HHSC operate under the requirements of a federal law known as the Individuals with Disabilities Education Act (IDEA). Under IDEA, the federal government gives money to states to establish and maintain an ECI system available in all communities.

ECI services are for infants and toddlers under the age of three. ECI services are individualized so they might focus on speech and communications needs for one child and on social and behavioral needs for another. In addition, under the ECI system there is service coordination to help link families to other agencies and services so a child and family have the chance to flourish as soon as possible.

For more information about ECI services and providers and how to get connected to and served by them, see the resources listed at the end of this handout.

WHAT IS A STATE INVESTIGATION?

A state investigation is an official review by HHSC that allows parents to raise a complaint and explain how their child has been denied ECI services, or that there has been another type of problem during the ECI process. You may raise a complaint in these key areas: (1) identification of the child; (2) evaluation of the child; (3) placement of the child; and (4) ECIservices for the child. For example, your family is totally turned down for eligibility and is not receiving anything. If you object, that is a complaint. In another situation, your child is in the ECI program but you are told there will be a reduction of ECI services due to funding or staffing cuts. If you object, that is a complaint. In whatever circumstances you find your family, if they do not seem proper or fair, then you have a right to ask for a state investigation. Unfortunately, there are times when a family has to speak up to get the local provider to fulfill ECI program requirements. The IDEA provides a procedure for you to use to potentially get the matter resolved.

You should apply for a state investigation as soon as you realize there is a problem that you cannot fix with a simple call or email to the local ECI provider. You can always cancel the investigation later if it turns out not to be needed. You ask HHSC for an investigation because it is the state agency overseeing the ECI system in Texas. To get an investigation, you must put your request in writing. A sample request letter is at the end of this handout.

A state investigation differs from a due process hearing by your level of involvement. During an investigation, your role is limited. Once you send your request for the investigation, you will answer questions only if the investigator asks you. Otherwise, you wait to hear back from HHSC about the results of the review. You are not allowed to file both a state complaint and a request for due process hearing on the same problem. Usually, a request for an investigation works best for a straight forward problem. A hearing might be better for a more complex issue because during the hearing you have time to explain your side of the story.

HOW DOES A STATE INVESTIGATION WORK?

In general, there are three main steps to a state investigation. First, there is your request for an investigation. Your request is called a “state complaint.” Second, there is the investigation itself. Finally, there is the state’s report on the investigation.

The first step of the investigation process is you writing and completing the state complaint. It is not complicated, but you must be sure to provide the requested information. What you say in your written complaint will guide the direction of the investigation. The investigator will only look into the problem you describe and will not look for other possible violations of law.

The second step of the process is the investigation itself. The investigation is conducted by an employee of HHSC who works in the state ECI office. The investigator will read the complaint, ask the local ECI provider for important paperwork such as evaluation reports and the individualized family service plan (IFSP), and get any needed clarification of events from you. Mostly, the investigation will be based on a review of the paperwork provided by you and the local ECI provider.

The third step of the process is the investigator’s decision. Based on all the information collected, the investigator will decide whether the local ECI provider followed all procedures or if there was a violation of the IDEA. There are a few exceptions but usually the investigator must finish the report by the 60th day after HHSC received your written complaint. If the investigator finds a violation of your rights, the local ECI provider must fix the problem.

WHAT IS A DUE PROCESS HEARING?

A due process hearing is a formal meeting before an independent hearing officer that allows parents to raise a complaint and argue that their child has been denied ECI services, or that there has been another type of problem during the ECI process. Just as in a state investigation, you may raise a complaint in these key areas: (1) identification of the child; (2) evaluation of the child; (3) placement of the child; and (4) ECIservices for the child. The IDEA provides the due process hearing as an optional procedure for you to use to potentially get the matter resolved.

You should apply for a due process hearing as soon as you realize there is a problem that you cannot fix with a simple call or email to the local ECI provider. You can always cancel later if it turns out not to be needed. You ask HHSC for a due process hearing because it is the state agency overseeing the ECI system in Texas. To get a hearing, you must put your request in writing. A sample request letter is at the end of this handout.

A due process hearing is different from a state investigation in that you are fully involved. It is your job to explain the problem at the hearing. You have to present enough information at the hearing to convince the hearing officer that you have a valid complaint.

HOW DOES A DUE PROCESS HEARING WORK?

In general, there are three main steps to a due process hearing. First, there is a step leading up to the hearing. Second, there is the hearing itself. Finally, there is a step following the day of the hearing.

The first step of the hearing process is the hearing officer getting the hearing organized. This includes finding a date and location for the hearing. It also includes making sure that the hearing officer and the local ECI provider understand your complaint. The hearing officer or her or his assistant will contact you and share information with you once HHSC opens your hearing file.

The second step of the process is the hearing itself. This is the formal meeting with the hearing officer. Depending on the nature of your complaint and how many problems you want addressed, the due process hearing might take only a few hours or it might be scheduled for the entire day. Both you and the local ECI provider will attend and have time to address your issues. Usually, everyone will review and discuss important paperwork such as evaluation reports and the IFSP. Documents such as the IFSP can be important evidence to verify that a certain placement or service was promised. Witnesses such as therapists will tell the Hearing Officer what they know about what did and did not happen. You have many rights during the hearing. Among the most important is your right to have an advocate or attorney attend with you to assist with arguing your side of events. Contact Disability Rights Texas as soon as possible about possibly representing your family.

The third step of the process is the hearing officer making a decision. The Hearing Officer’s role is to be an impartial and neutral decision-maker determining the facts of your case and deciding whether the IDEA requirements for ECI were followed for your child. The Hearing Officer is expected to study the documents used as evidence and think about the testimony of all witnesses. Within a reasonably quick time period, the Hearing Officer will write to both the family and the local provider and explain her or his decision. If the Hearing Officer’s decision is that the local ECI provider did something wrong, then the local provider must do what the Hearing Officer says to fix the problem.

HOW CAN I LEARN MORE?

Listed here are some of the state sources for more information about ECI and legal rights of parents.

Special Education Information Center

SAMPLE REQUEST FOR EARLY INTERVENTION SERVICES: STATE INVESTIGATION OR DUE PROCESS HEARING

Federal law – the IDEA – provides for state investigations and due process hearings to resolve disputes relating to the identification, evaluation, or placement of infants and toddlers with disabilities or regarding the provision of early intervention services. The investigation is performed by state agency staff. The due process hearing is conducted by a hearing officer who is independent of the local provider. This sample letter may be used to request either a state investigation or a due process hearing. You are not required to use this form. A written request that includes the required information may be submitted to request an investigation or hearing. You can either mail or fax the request. Remember to retain a copy for your records. A copy of your written request should be sent to the local ECI provider that you name.

The child’s local ECI provider is or should be: [provide the following information: local ECI provider’s name; local ECI provider’s address; and local ECI provider’s phone number]

This request for a [state investigation or due process hearing] concerns: [describe the alleged violation of law, regulation, or policy regarding the identification, evaluation, or placement of your infant/toddler with a disability or regarding the provision of early intervention services. Provide the following information about the problem(s): relevant dates or range of dates; specific events or lack of action; and the names, or job titles, of the persons involved from the local ECI provider]

We ask that the HHSC grant the child the following relief: [describe what you believe would be the fair and full remedy or resolution of the problem(s)]

[Signature]

www.DRTx.org
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Main Line: 512-454-4816

Disclaimer: Disability Rights Texas strives to update its materials on an annual basis, and this handout is based upon the law at the time it was written. The law changes frequently and is subject to various interpretations by different courts. Future changes in the law may make some information in this handout inaccurate.

The handout is not intended to and does not replace an attorney’s advice or assistance based on your particular situation.